The vote stunned civil rights groups, who earlier in the day issued statements expressing disappointment with the findings of the report, released earlier Thursday afternoon.
Members of the Homeland Security Advisory Council voted to uphold other sections of the report calling for greater oversight and monitoring of immigration detention facilities. But more than three-quarters of the panel’s members voted to support a dissent that was included in the report, in which one of the authors criticized “the conclusion that reliance on private prisons should, or inevitably must, continue.”
The report was the result of a two-month investigation by a six-member subcommittee made up of former law enforcement leaders, legal experts and advocates. It was formed by Homeland Security Secretary Jeh Johnson after the Justice Department announced in August that it would phase out its use of privately run prisons due in part to safety and security concerns.
Seventeen council members voted to approve the report but uphold the dissent. Five members voted for the report in full, and one member voted to reject the document. The report and the council’s vote were advisory and nonbinding, with any final decisions to be made by the agency’s director. Johnson can act or leave the matter to a successor in the incoming Trump administration.
The dissent was written by Marshall Fitz, who at the time was a senior fellow at the Center for American Progress, a left-leaning think tank. However, the advisory council that voted on it is nonpartisan, made up of military, counterterrorism and law enforcement leaders, as well as scholars and corporate executives.
The council’s recommendation represents a remarkable development amid furious nationwide debate about immigration, rising numbers of immigrants facing deportation, and a president-elect who has vowed to crackdown on illegal immigration and previously characterized some migrants as “criminals” and “rapists” dispatched by Mexico.
“It’s a significant statement,” says Joanne Lin, legislative council for the American Civil Liberties Union, which has opposed the use of private prisons. “The Homeland Security Advisory Council, they are nonpartisan. It’s not as if they’re selected by the political party in power at the time, and they embody a cross section of experts.”
Homeland Security did not comment on the vote itself, instead stating that “ICE leadership will review and consider the council’s recommendations and will implement any changes, as appropriate.”
Nearly two-thirds of the nation’s roughly 41,000 immigrant detainees are incarcerated at private facilities run by for-profit contractors. Another quarter are held in county jails. Just 10 percent are held in federal facilities.
But whereas the number of federal U.S. inmates has fallen 12 percent in the past three years, aiding the Justice Department’s plan to phase-out its use of privately run prisons, the number of migrants and detainees has exploded, driven by refugees fleeing violence in Central America and record numbers of deportations carried out by the Obama administration.
From September to October alone, the number of immigrants apprehended at the border leaped by 12 percent, to 46,195 people in October from 39,501 in September, the subcommittee’s report said.
In fact, as the Justice Department’s Bureau of Prisons was curtailing its use of privately run prisons this fall – some of them with troubling histories of alleged abuse – ICE was apparently entering negotiations to contract with the same facilities.
“Capacity to handle such surges, when policymakers determine that detention will be part of the response, cannot reasonably be maintained solely through the use of facilities staffed and operated by federal officers,” the report said.
ICE-run detention facilities, it found, are most responsive to detainees’ needs but also the most expensive to run. County jails, meanwhile, are “most problematic,” made up of facilities that frequently do not meet federal standards and led by officials who are often “resistant” to changes. Hence, the subcommittee concluded, that left one type of facility to rely on:
“Fiscal considerations, combined with the need for realistic capacity to handle sudden increases in detention, indicate that DHS’s use of private for-profit detention will continue,” the report said.
Fitz, who is now managing director of the Emerson Collective, an education, immigration, and social justice organization, diverged from that conclusion.
The subcommittee, forced to complete its review in two months, did not have enough time to consider the “broader set of questions regarding the most effective and humane approach to civil detention,” he contended in his dissent.
“A number of key issues that went beyond the scope of this review are too consequential and too integral to allow for a fully informed decision on federal versus private detention models,” Fitz wrote. “Absent that type of thorough review, I cannot, in good conscience, agree that status quo reliance on the continuation of the private detention model is warranted or appropriate.”
The ACLU and other civil rights and immigration advocacy groups, as well as left-leaning lawmakers, have long opposed the use of private prison and detention facilities. Critics allege that private incarceration impedes transparency, hinders oversight and distorts the justice system by turning prisoners and detainees into commodities for corporations. Investigative reports by The Nation and Mother Jones also exposed a range of issues at privately run prisons.
Detention Watch Network, an immigration and detention advocacy group, called the subcommittee’s “disappointing” but “not surprising,” and cited ICE’s apparent efforts to use the same facilities being abandoned by the Bureau of Prisons.
“We are outraged that the subcommittee has chosen to recommend small changes that clearly will not address the underlying abuses endemic to the detention system,” Detention Watch Network policy director Mary Small said in a statement “The investigation’s findings don’t respond to the mountain of evidence against private prison facilities, which are rife with abuse, mismanagement and neglect.”